Get Copyright Clarity by Understanding Fair Use

Creative people from all walks of life use videos, images, music, newspapers, websites and social media — and these copyrighted materials are an important part of our cultural heritage. Teachers and students use these materials, too. Those involved in media education make extensive use of copyrighted content, using images, videos and music in both analyzing and creating media.

Teachers are well-protected by copyright law for face-to-face use, display and performance of copyrighted materials in the classroom under Section 110 of the Copyright Act of 1976, but 10 years ago, many of them began to fear that their use of copyrighted digital media for teaching and learning media production might be illegal. Could they “rip” a clip from a copy-protected DVD to analyze mise-en-scene? Could their students download and use an image or a video clip and include it in their own creative media productions? They just didn’t know.

To address the climate of fear, uncertainty and doubt about the legal use of copyrighted materials for teaching and learning, media literacy educators worked collaboratively with support from legal experts to develop the Code of Best Practices in Fair Use for Media Literacy Education. This document identified the legal, normative practices of fair use for media literacy education. It helped to clear up the copyright confusion.

After all, copyright law provides strong protection to creative works in order to foster innovation and the spread of new ideas. But although owners’ rights are strong, the users of copyrighted material also have legal rights. As users, we may copy, quote and generally re-use existing copyrighted cultural material in all forms and formats. After all, such uses are a critically important part of generating new culture.

Many people are unaware that users of copyrighted materials are also protected under Section 107 of the law, which is called the doctrine of fair use. This law is intentionally written with flexibility that works to the advantage of users. Using this part of the law, documentary filmmakers have clarified how fair use applies to their work, as have online videos creators, poets and many others, thanks to the work of Peter Jaszi and Patricia Aufderheide at American University’s Center for Media and Social Impact.

The law balances a user’s unlicensed use of copyrighted material by determining whether the social or cultural benefits of that use outweigh the costs to the copyright owner. When evaluating a copyright infringement case, judges decide whether an unlicensed use of copyrighted materials is “fair” by taking the full context and situation of the copyrighted work and the user’s goals into account.

To help you decide if your particular use of copyrighted material is a fair use, simply ask yourself:

• Did the unlicensed use “transform” or add value to the material taken from the copyrighted work by using it for a different purpose than that of the original?

• Did you use just the amount of copyrighted material you need, considering the nature of the copyrighted work and your goals and purposes?

If your work could be used as a substitute for the original, you probably can’t claim fair use. But if the answers to these two questions are “yes,” you can use the copyrighted material without payment or permission. There are no forms to fill out. If you can answer “yes” to these questions, a court is likely to find your use fair, so you are unlikely to be challenged in the first place.

As a media literacy educator and activist, I know how important fair use is to our work. I’m proud to have been involved in protecting the legal rights of teachers and students to legally “rip” copy-protected movie DVDs. In 1998, Congress made “ripping” illegal even though it is vitally necessary for film and media education. They created a special procedure that enables people to receive special exemption when the law interferes with First Amendment and fair use rights.

On April 10, 2018, I went to Washington, DC, for the fourth time to testify about the need to receive a special exemption for Section 1201 of the Digital Millennium Copyright Act. I want to continue to ensure that college faculty as well as kindergarten through grade 12 teachers may “rip” video from copy-protected DVDs or works distributed by online services for media literacy education. Thanks to our advocacy, even K-12 students may also legally create clips of copy-protected works using screen-capture technology like Screencast-o-Matic or other tools.

As people of all ages compose and create media, they must be aware of their legal right to use, quote from or excerpt the work of other authors in their own creative work. Without the right to use bits of other people’s work in our own expressions, creativity and innovation would be stifled. For this reason, the doctrine of fair use is an essential balance that protects the rights of users of copyrighted material.

But like all rights, it’s a “use it or lose it” situation. Media makers, faculty and students must learn about their rights and responsibilities under copyright and take full advantage of the power of fair use!

 Renee Hobbs is professor of communication studies and director of the Media Education Lab at the Harrington School of Communication and Media at the University of Rhode Island. She is the author of Copyright Clarity: How Fair Use Supports Digital Learning and The Routledge Companion on Media Education, Copyright and Fair Use. Learn more: mediaeducationlab.com